Fiat iustitia, pereat mundus: The International Criminal Tribunals and the Application of the Concept of Genocide

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Master thesis

Fiat iustitia, pereat mundus

The International Criminal Tribunals and the Application of the Concept of Genocide

Bruna Fonseca Dias Lima

Year: Spring 2018 Points: 45.0

Supervisor: Roland Kostić Word count: 28.278

The Hugo Valentin Centre

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ABSTRACT

The concept of genocide is probably the most debated subject in Holocaust and genocide studies. The political implications to its usage, or resistance to do so, have also been lengthily discussed. Yet, when it came to the legal sphere of the concept it has been mostly descriptive, without much theorizing on the politicization of the convictions of genocide. This study investigates the relation between the International Criminal Tribunals for the former Yugoslavia and Rwanda application of the crime of genocide and how these judgements were informed. Through the court’s transcripts of a number of selected cases, the research will analyze the application qualitatively, identifying the key factors that determined its usage. The analyses rest on the legal and political aspects that influenced the chambers, evaluating which one explains best. The results indicate that there is no single explanation and that both legal and political reasonings merge in the international legal arena. The courts’ decisions have many inconsistencies that cannot be accounted by a solo description. Thus, matters of law interpretation, conflict’s ending, postcolonialism, and legitimacy all take a tool when convicting or acquitting someone for the crime of genocide.

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ACKNOWLEDGMENTS

Undoubtedly, the completion of this thesis is an achievement that belongs to a handful of important people. First and foremost, I would like to thank my advisor, Roland Kostić, for his compassion and comprehension, never giving up on me. I would also like to thank my dear friends Helen Meaney and Lee Martin: you were the most patient people I’ve ever met, enduring all my complaining and yet cheering and helping me out whenever I needed you. All my appreciation to my colleagues from Law School, especially Paulo Tatsch and Matheus Tavares, who were of utmost importance in the quest to regain confidence in my work. Though not present through this last step, I need to acknowledge the importance of Thiago Porto during my master’s degree; the debater and reviser for every single line I wrote. I have an eternal gratitude for the best friends one could possibly ask for, Juliana Ghazi and Andrew Basso, they were there for the tears, for the smiles, and hopefully for all the successes that will come. I wouldn’t be here without their encouragement! A special praise to my family, who underwent my absence so many times, either while I was living abroad or when I would retreat to study – thank you for understanding. Last, but not least, I would like to thank my parents, Lara and Fernando, and my stepfather, Jackson, for fully supporting my dreams, and graciously accepting when I gave up on them to start new ones.

Muito obrigada!

Bruna

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GLOSSARY OF ACRONYMS

ETO École Technique Officielle ICC International Criminal Court

ICTR International Criminal Tribunal for Rwanda ICTs International Criminal Tribunals

ICTY International Criminal Tribunal for the Former Yugoslavia IMF International Monetary Fund

IMT International Military Tribunal JNA Jugoslovenska Narodna Armija

MRND Mouvement Républicain National pour le Développement NATO North Atlantic Treaty Organization

RPF Rwandan Patriotic Front

RTLM Radio Télévision Libre des Mille Collines

UN United Nations

UNAMIR United Nations Assistance Mission for Rwanda UNGA United Nations General Assembly

UNHCR United Nations High Commissioner for Refugees UNPROFOR United Nations Protection Force

UNSC United Nations Security Council VRS Vojska Republike Srpske

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Scire leges non hoc est verba earum tenere sed vim ac potestatem

To know the law is not merely to understand the words, but as well their force and effect.

Justinian, Digest, Book 1, Title 3, 17

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INTRODUCTION

The coining and codification of the definition of genocide is seen as a turning point for understanding mass atrocities; and, indeed, it was. Without the arduous work of Raphaël Lemkin to promote his concept, the world would still think that the Holocaust was a one-time occurrence. However, it felt incredibly short when it came to prevention and protection of groups threatened by genocidal actions. Until the tragedies in the Balkans and Rwanda in the 1990s, genocide was relegated to academic circles, highly avoided in the political environment due its imperative to act.

With the overflooding of images of mass graves and the shared sentiment of failure for not acting during the conflicts in the former Yugoslavia and Rwanda, the international community decided that it was needed to punish those responsible. Thus, in an innovative action from the Security Council, two international criminal tribunals were created in order to prosecute those suspects of crimes against humanity and genocide.

The importance of these tribunals for the overall process of justice and reconciliation is widely recognized. Despite their failures and the critics they constantly receive, both the ICTY and the ICTR have advanced the knowledge of what happened in many ways, helping victims and families to understand and move one. Yet, an even more important advancement of the ICTs is less recognized.

As stated, for a while the crime of genocide was a dead letter, alive only in the vividly academic discussions that flourished during the second half of the twentieth century.

Still, with the absence of an international tribunal with the jurisdiction to prosecute individuals, genocide remained a law with no application. Only with the creation of the ICTY, and subsequently the ICTR, and their straightforward Statutes recognizing their competence to prosecute genocide, that the crime (in a legal sense) was put into practice.

The significance of legal precedents for Law, in the academic and practical fields, cannot be overestimated. Especially in countries that adopt the Common Law, but also

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to the ones that follow the Civil Law proceedings, former courts’ decisions are one of the greatest sources of legal approaches, underpinning new cases and sentences alike;

they are used as the basis for decisions and law creation or modification. Case laws, thus, are in the core of any judicial system. So, when it comes to genocide, a crime that is based in a single resolution, extremely litigious due its dubious terms and lack of clarification, jurisprudence works as an extension of the crime’s definition.

Nevertheless, the Chambers and judges from different cases presented diverse interpretations of the law. Although a common feature in national tribunals, when it came to these two specific Tribunals, with a restricted pool of crimes to judge, in similar backgrounds and modus operandi, touching on such a sensitive matter, the disparate interpretations created confusion on what constitutes a genocide, giving grounds to question the court’s validity.

The present thesis will analyze these diverse interpretations trying to single out the factors that influence in the courts’ sentences. Therefore, the main objective is to identify which factors, legally and politically, influence these decisions, pointing how they interplay and change the result of each case. More specifically, the thesis will evaluate the historical background of both conflicts in the former Yugoslavia and Rwanda and the sentencing history in the case law selected to understand how political interpretations engage with the legal assessments of each case.

Those differences are even greater when it comes to the sentencing of the two Tribunals compared. While the ICTR has a history of widening the explanation of what constitutes (acts of) genocide, the ICTY presents many constraints applying it, even among similar cases in Bosnia. It is argued then that matters of victor’s justice, peace agreement, postcolonialism, and legitimacy interact with the legal interpretation of the concept, sometimes expanding its application and other times hardening its comprehensiveness.

How the concept of genocide has been used since its inception changed considerably.

The discussion over what constitutes a genocide is probably the most polarizing academically, with various diverse positions developing since the beginning of Holocaust and genocide studies. Hitherto, the discussions have focused primarily on the possibilities and necessities of expanding the meaning and, on the other hand, the need to keep it restricted as a way to maintain its reputation as the ultimate crime.

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Independently, much has been considered of what should genocide mean, and not so much as on what constitutes that specific meaning.

Ultimately, this work aims to understand how the concept of genocide is applied and why it is applied in this way. Departing from a purely legalistic point of view to one that encompasses the political nuances, it seeks to fill the existing lacuna and explain what determines how the crime is applied in the International Criminal Tribunals.

Literature Review

The literature over the ad hoc International Criminal Tribunals is lengthy. Most debates focus on the narrow/widening problem of concept application, with analysis there are mostly descriptive. In a smaller scale, some authors pointed to the political aspects of these Tribunals, critically evaluating how some of their postures are influenced by diplomatic attitudes rather than legal ones.

The most important study on the international tribunals is by William A. Schabas.

Schabas has conducted various works on genocide, international humanitarian law, and international criminal tribunals, in which he deals with the definition, classification, categorization of the crimes and international courts, as well as historical facts and background, drafting processes, jurisdiction, competence, and composition.¹ He is undoubtedly the principal authority of the field.

Schabas is quite critical on the proposed widening interpretations to the genocide Convention. He believes that the definition is adequate and appropriate, and though the exclusion of cultural genocide is to be regretted, in order to maintain genocide as the apex of the pyramid of crimes, it is important to keep its characterization restricted.² He also speaks about the differences between genocide and ethnic cleansing, the source of most discussions in courts and academia. Schabas defends that even though the UNGA passed several resolutions in the 1990s that condemned ethnic cleansing as an act of genocide, this line should not be blurred. Thus, whilst genocidaires do not permit

1 William A. Schabas, “Introduction,” in Research Handbook on International Courts and Tribunals, ed. William A. Schabas and Shannonbrooke Murphy (Cheltenham: Edward Elgar Publishing, 2017): 1-36.

2 William A Schabas, “The Law and Genocide,” in The Oxford Handbook of Genocide Studies, ed. Donald Bloxham and A. Dirk Moses (Oxford: Oxford University Press, 2010): 123-141.

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the existence of the determined group in any other place, ethnic cleansers do not want their presence in a determined territory.³

Another significant scholar of the international tribunals is Payam Akhavan. Though less prolific in terms of publications than William Schabas, his works are more analytical, presenting substantial critiques to the operation of the ICTs. One of his well cited works is his article on the wrong assumption that justice may hinder peace attempts in post conflict societies. Akhavan defends that a case analysis of international and hybrid-tribunals show that impunity is a bigger disincentive to peace than prosecutions. Indeed, judicial interventions, even when cannot be executed, are more likely to prevent atrocities.⁴

Akhavan has also wrote a book on the application of the concept of genocide in the courts of law. In his critical assessment, the author points that the ICTs made many contributions to the development of international law, however, they have a tendency to see genocide as a symbol, not a legal category. This way, they lack the emotionally disconnected legal analysis the strictures of jurisprudence requests. Moreover, Akhavan openly rejects the blind faith people have on the neutrality and objectivity of tribunals, pointing the need for a critical consciousness of its inherit limitations, especially when dealing with genocide.⁵

Other critical authors of the ICTs are Kingsley Moghalu, Klaus Bachmann and Aleksandar Fatić. Moghalu’s study focus mainly on the international politics that permeates the international criminal tribunals. In short, he argues that the political nature and unfair justice these tribunals render is a consequence of them being created by unequal hegemonic states. And once these same tribunals attack the fundamental character of the international society – sovereignty – they are doomed to fail from its inception. He advocates that legal justice is more appropriated to be exercised within

3 William A. Schabas, Genocide in International Law: The Crime of the Crimes (Cambridge:

Cambridge University Press, 2009).

4 Payam Akhavan, “Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism,” Human Rights Quarterly 31 (2009): 624-654.

5 Payam Akhavan, Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime (Cambridge: Cambridge University Press, 2012).

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the sovereign state, acknowledging that international tribunals are necessary only when there is an absence if national justice.⁶

Bachmann and Fatić focus on the problems and inconsistencies the ICTs present, which eventually detract the impressions of professional serious and hinder their popular legitimacy. They believe that the political side of these Tribunals is natural and inevitable, the problem is, in fact, in the lack of admission of such compromise, openly seeking for constructive political outcomes instead of engaging in backstage politics.⁷ Most of these authors recognize that the Tribunals operate attending some political interests, and that they present inconsistencies in their procedures and sentences alike.

And although their extensive work has contributed enormously to the field of genocide studies and international law, none to my knowledge have addressed specifically what establishes the application of the concept of genocide in the ICTs. In order to fill this lacuna, theories on law interpretation, conflict’s ending (victor’s justice and peace agreements), postcolonialism, and institutional legitimacy will be addressed in order to pursue possible explanations for the Courts’ contradictions. The above concepts will further explicate how the genocide is applied in the case law and why it is understood so differently throughout the Tribunals’ chambers.

Research Questions

Even with some many similarities, equally in its creation and in the historical cases analyzed, the Chambers, both Trial and Appeals from either ICTY and ICTR, had different understandings for what can be understood as genocide. Hence, this thesis seeks to answer what defines how a chamber from the ICTs charge a suspect with genocide. Its main question is: what determines how the genocide concept is applied in the International Criminal Tribunals?

In order to answer it, two subsidiary questions will be pursued: (1) how the genocide concept is applied in each case, and (2) why it is applied in that way. The intention is,

6 Kingsley Chiedu Moghalu, Global Justice: The Politics of War Crimes Trials (Westpoint:

Praeger Security International, 2006); Kingsley Chiedu Moghalu, Rwanda’s Genocide: The Politics of Global Justice (New York: Palgrave Macmillan, 2005).

7 Klaus Bachmann and Aleksandar Fatić, The UN International Criminal Tribunals: Transition without justice? (London: Routledge, 2015)

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through an analysis of how the courts rule on the crime of genocide, added to possible legal or political explanations for its application, to find possible solutions for the research question, pointing the variables that may (or may not) influence the judges’

decisions.

Disposition

The present study is divided in six different sections: theory, methodology, background, case law, analysis, and conclusion. The first section deals with the theories used to explain the phenomenon researched, thus theoretical aspects on the concept of genocide, law interpretation, victor’s justice, peace agreements, peace versus justice dilemma, postcolonialism, and legitimacy will be examined. It concludes with a summary of the theoretical assumptions that are evaluated in this thesis. In methodology it is delineated how the research is arranged, hence it explains the methods chosen, the case selection and the research contributions and limitations. The background section presents the historical foundations that led to the coining of the word genocide as well as the codification of it as a crime under international law. It has also a contextualization of the conflicts in the former Yugoslavia and in Rwanda in the 1990s, along with the creation of the two International Criminal Tribunals that followed. In the fourth section there is a presentation of the five selected cases, highlighting the background of each accused, their indictments, their sentences concerning the crime of genocide, and the appeals decision. The analysis section addresses the theories and assumptions from the first section to the cases presented in order to evaluate what determines the application of the concept of genocide. Lastly, the conclusion section closes the thesis making a quick assessment of the research arguments and possibilities for future research.

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THEORY

Law Interpretation

Any law, no matter how clear and precise it is, depends on being interpreted in order to be applied. It is only through its interpretation that the legal text gains meaning.

Giuseppe Maggiore, Italian jurist, wrote in his book on the principles of criminal law (Principi di Diritto Penale) that without interpretation of the law, isolated in its abstraction and generality, it would be a dead letter; the interpretation gives life to the law.⁸

According to Karl Larenz, German legal philosopher, interpretation is an inquiry into the legal propositions. He quotes Friedrich Carl von Savigny, another exponent of German law, attesting that the interpretation is a creative knowledge, an art of the discovery of truths guided by determined methods.⁹ Yet, Larenz defends that the interpreter should in no way add to the law, only endeavor to understand it. In contemplation of legal security, the judges must interpret so that their interpretation is valid for all case laws that have the same type and species. Since there is no formal biding of courts, which allows decisions differ in its interpretations of the law, the modification should be done if there is a proper conviction that are better reasons to do so.¹⁰

Diversely, the libre recherché scientifique (free scientific research) school of thought, represented by French jurist François Gény, advocates that to interpret is to give an actual meaning to the norm regarding both what it is taken from the text and the social reality where it is applied. Interpretation, then, should be used to modernize the law,

8 Paulo Dourado de Gusmão, Introdução ao Estudo do Direito (Rio de Janeiro: Forense, 1997), 217.

9 Karl Larenz, Metodologia da Ciência do Direito (Lisboa: Fundação Calouste Gulbenkian, 1969), 359.

10 Larenz, Metodologia da Ciência do Direito, 358.

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without being restrained to dogmatic positions that prevent adequate solutions or revolutionary approaches that may abuse the judicial power.¹¹

Nevertheless, these two schools of thought, as well as other theories, agree that there are several elements necessary to understand the legal norm, to a greater or lesser extent, depending on the approach.¹² These elements are divided between five different techniques: grammatical (or literal), logical, systematic, historical, and sociological (or teleological).

The grammatical method is the first stage of interpretation. It consists on the literal analysis of the letter of the law, its semantic value, syntax, and punctuation, prevailing the technical sense.¹³ Still, the focus on literacy ends up impairing the mens legis¹⁴, as Celsus, the Roman jurisconsult, adverted: “scire leges non hoc est verba earum tenere, sed vim ac potestatem” (to know the law is not to know the words of the law, but its force and power).¹⁵

The second stage, the logical approach, considers the ratio legis,¹⁶ the aim pursued by the law, its meaning and scope.¹⁷ This stage is divided between the external and internal logic. The internal logic considers the intelligence of the legal text, studied in its own unity of thought deduction, induction and categorical syllogism. It uses only elements that are given by the legislation. The external logic, on the other hand, observes the events that triggered the formation of the legal phenomenon, the occasio legis¹⁸ as well as the ratio legis. Louis Brandeis, American Supreme Court Judge, summarized the importance of logical – especially external logic – element in his famous passage: “No law, written or unwritten, can be understood without a full knowledge of the facts out of which it arises, and to which it is to be applied”.¹⁹

11 Gusmão, Introdução ao Estudo do Direito, 217.

12 Paulo Nader, Introdução ao Estudo do Direito (Rio de Janeiro: Forense, 2016), 275; Larenz Metodologia da Ciência do Direito, 361.

14 The mind of the law, the spirit of the law.

15 Nader, Introdução ao Estudo do Direito, 276.

16 The reason or principle behind the law.

17 Henrique E.G. Pedrosa, Introdução Didática ao Direito (Rio de Janeiro: Forense, 2010), 144.

18 The reasons behind the laws’ elaboration.

19 Nader, Introdução ao Estudo do Direito, 277.

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Third approach is the systemic. It proposes that any interpretation should be in consonance with the normative system (legal order) in which the law is entailed.

Therefore, any given law must be understood in the set of laws it belongs, harmonious and interdependent.²⁰ The historical element investigates the origins of the Law in a specific society, how its institutions and systems developed. This stage searches for the historical reasons that determined a specific law (occasio legis) using legal documents, like the travaux préparatoires, to finally uncover the meaning of the mens legis.²¹ In an interesting critique, Paulo Nader points that:

“As the purpose of modern interpretation is not to disclose the mens legislatoris, one should give only a relative importance to the discussions of the technical commissions of the Congress and the parliamentary debates. The older the preparatory work is, lesser is the value it has to offer, because it portrays facts from a more distant society.”²²

The fifth and last stage is the sociological or teleological. This approach objective is to adapt the purpose of the law to the new social requirements based on whatever the law intends to achieve and the social aspect it aims on protecting. However, this purpose is not immutable or previously imagined by the legislator, it is implicit in the message the law passes. It is an interpreter’s duty to reveal what the legal text has as a guarantor mission, harmonizing old principles (law coordination) with new facts (new social frame).²³

Regarding the interpretation methods applied at the international courts, William Schabas24 evaluates that a large part comes from the Vienna Convention on the Law of Treaties. The principles for the interpretation of treaties are outlined in articles 31 and 32 of the referred convention, in verbis:²⁵

Article 31 – General rule of interpretation

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

20 Pedrosa, Introdução Didática ao Direito, 144.

22 Nader, Introdução ao Estudo do Direito, 279. Free translation.

23 Nader, Introdução ao Estudo do Direito, 279-280.

24 William A. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge: Cambridge University Press, 2006), 79.

25 In these terms.

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The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

There shall be taken into account, together with the context:

any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

any relevant rules of international law applicable in the relations between the parties.

A special meaning shall be given to a term if it is established that the parties so intended.

Article 32 – Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

leaves the meaning ambiguous or obscure; or

leads to a result which is manifestly absurd or unreasonable.²⁶

Applying the five stages, as well as the guidelines brought by the Vienna Convention on the Law of Treaties, one may find that the results may not be always similar to the pure grammatical interpretation. Ascertaining that the ratio legis is broader than the formula employed by the legislator, making it necessary to enlarge the definition so it can correspond to the real meaning of the law.²⁷

Victor’s Justice

Right before his imprisonment, Slobodan Milošević voiced harsh critiques over the morality and legality of the ICTY. Milošević’s implication that the International Tribunal was in fact a victor’s tribunal rekindled the victor’s justice debate, resonating not only among Serbian nationalists, but also through scholars and lawyers that dissent American power over international institutions.²⁸ Summarily, victor’s justice means

26Vienna Convention on the Law of Treaties, May 23, 1969, United Nations, Treaty Series, vol. 1155, 331, http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.

28 Gary Bass, “Victor’s Justice, Selfish Justice,” Social Research 69, no. 4 (2002): 1035; Victor Peskin, “Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunal for the Former Yugoslavia and Rwanda,” Journal of Human Rights 4, no. 2 (2005): 228.

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“an extreme form of selective prosecution which occurs when only members of the losing side are prosecuted.”²⁹

Victor’s justice is commonly attributed to the International Military Tribunals held in Nuremberg and Tokyo. Those Tribunals have been heavily criticized for judging only one side, neglecting war crimes and other atrocities perpetrated by the Allied forces and, therefore, breaching one of the fundamental principles of justice: impartiality. It is well known that one of the International Military Tribunal for the Far East judges voted for the acquittal of all defendants on the basis that they could not be judged whereas the European allies were not.³⁰ Still, Judge Pal was a dissent, the only one that spoke on behalf of equality and impartiality of the prosecutions.

Consequently, post-war tribunals became closely associated to victor’s systems of punishing losers for the damage and suffering caused during war in academia, believed to lack the true commitment with the rule of law and to be tainted with the political interests of those who established them.³¹ This kind of selectivity is said to undermine the courts’ legitimacy, suggesting that those punished, besides the atrocities they have committed, are also convicted for being on the losing side.³² Victor’s justice and its resulting immunity for the winning side risks sending contradictory message of accountability which promotes a sense of impunity as long as you are the one claiming the victory.³³

Gary Bass states that there is a crucial distinction between the circumstances in which a tribunal is created and how decently and fairly it operates. In that case, even a victor’s tribunal can operate following the fairest and most impartial court procedures. In his words: “it is victory that makes justice possible but the fairness of the process is what makes justice.”³⁴

29 Lars Waldorf, “‘A Mere Pretense of Justice’: Complementarity, Sham Trials, and Victor’s Justice and the Rwanda Tribunal,” Fordham International Law Journal 33, no. 4 (2011): 1273.

30 William A. Schabas, “Victor’s Justice: Selecting ‘Situations’ at the International Criminal Court,” The Journal Marshall Law Review 43 (2010): 536.

31 “Transitional Justice,” Stanford Encyclopedia of Philosophy, substantive revision April 4, 2014, https://plato.stanford.edu/entries/justice-transitional/; Schabas, “Victor’s Justice,” 549.

32 Bill Wringe, “Why Punish War Crimes? Victor’s Justice and Expressive Justifications of Punishment,” Law and Philosophy 25 (2006): 164.

33 Peskin, “Beyond Victor’s Justice?,” 228.

34 Stanford Encyclopedia, “Transitional Justice.”

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Many authors believe that only within situations of military defeat countries are likely to hand over their accused citizens in order to be prosecuted.³⁵ For instance, Nuremberg and Tokyo would never have happened without an Allied victory, Eichmann would never been tried if Israelis have not abducted him in Argentina, and South Africa’s reconciliation process was only possible because of the collapse of the apartheid system. It is remarkable, then, that even with all the possibilities of vengeance that a victor can infringe on his enemies, he chooses to legally prosecute them.³⁶

Another relevant argument on the subject deals exactly with these other possibilities of victor’s justice. Also addressed by Bass,³⁷ he maintains that while the victor’s justice of international criminal tribunals is contested, it is primarily a liberal feature, being its counterpart, the “victor’s justice” of illiberal contenders, more gruesome and undesirable: the annihilation of the enemy or, in the best-case scenario, a rigged show trial. The author concludes that the manner in which a state chooses to punish its adversaries can be of great help in constructing a more stable world, as in the case of Germany after World War II, or, when poorly done, end in a disastrous form, as when Napoleon escaped his exile in Elba, making another round of Napoleonic Wars.³⁸ “In other words, some victor’s justice can be substantively flawed.”³⁹

Consistently, William Schabas⁴⁰ defends the IMTs criticisms. To begin with, the author acknowledges that proceedings followed the highest standards of the time, but, mostly, he points that equalizing the Tribunals victor’s justice with failure is an error. Though the Allied crimes were not assessed, they cannot be compared to the atrocities committed by the Axis. Thus, the judgments had their fair share of importance in the overall accountability of Second World War crimes.

The critiques over IMTs victor’s justice did not go unnoticed while creating the ICTs.

The establishment of the Tribunals through the UN, a neutral body that was neither a party in both conflicts, could not configure a winner’s tribunal. More importantly, their mandates clearly stated that all serious violations of international law could be

35 Wringe, “Why Punish War Crimes?,” 168-169.

36 Bass, “Victor’s Justice, Selfish Justice,” 1040.

40 Schabas, “Victor’s Justice.”

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prosecuted, no matter the side of the conflict.⁴¹ In the decision of Prosecutor v. Tadić, the Tribunal addressed the matter stating that it was distinct from its Nuremberg and Tokyo precedents where only the vanquished were punished.⁴²

Nevertheless, the negative comments remain in a large part of the post-conflict tribunals. The ICTs are compared to the IMTs in the sense that all of them were created by super powers. Whilst the IMTs where designed by the Allied victors (the great powers), the ICTs were stablished by UNSC Resolutions, which in many cases is understood as the permanent five’s will.⁴³ Ergo, the fear of this tribunals, as well as the ICC, becoming instruments in the hand of the victorious.⁴⁴ Thus, the overall understanding reproduces the words of Hermann Göring: “the victor will always be the judge, and the vanquished the accused.”⁴⁵

Peace Agreements & the Peace vs. Justice dilemma

Cases with a clear and unchallenged victor have become increasingly scarce since the Second World War. More commonly are the situations where former contenders are granted the right to be part of the new government as a way of guaranteeing the peace settlement.⁴⁶ So, the peace agreements’ main objective is “to end violent conflict by designing frameworks that aim to accommodate the competing demands of the conflict’s contenders.”⁴⁷

This condition creates a scenario for post-conflict justice that Akhavan⁴⁸ calls the post- Nuremberg model: circumstances where the suspects of crimes retain some degree of power. Yet, achieving peace and obtaining justice sometimes are incompatible goals – whilst the end of the conflict depends on negotiating with the same leaders that are

42 Schabas, “Victor’s Justice,” 537.

43 Schabas, “Victor’s Justice,” 537.

46 Donna Pankhurst, “Issues of justice and reconciliation in complex political emergencies:

Conceptualising reconciliation, justice and peace.” Third World Quarterly 20, no. 1 (1999): 241- 242.

47 Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (Oxford:

Oxford University Press, 2008: 105.

48 Payam Akhavan, “Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism.” Human Rights Quarterly 31, no. 3 (Aug. 2009):

627.

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potential targets for indictments, the insistence on prosecutions can prolong the war, magnifying the numbers of crimes.⁴⁹ As the international lawyer Anthony D’Amato stated:

“however desirable the idea of war crimes accountability might appear in the abstract, pursuing the goal of a war crimes tribunal may simply result in prolonging a war of civilian atrocities. This would surely be a paradoxical result, for the idea of war crimes accountability is to deter the commission of war crimes and not to serve as a barrier to discontinuing them.”⁵⁰

This dilemma is rather irrelevant in contexts of victor’s justice where there is no need for balance among peace and justice.⁵¹ Still, in situations of peace agreements, where the deal needs the compliance of conflict leaders to restrain from violence, it is believed that a potential prosecution may impede or delay peace settlements and even prolong atrocities.⁵² The between peace vs. justice revolves around the dilemma of achieving peace and being able to promulgate justice.

The main contingency is whether the prospection of justice disincentives the implicated leaders in ending the war.⁵³ Some authors argue that mass prosecutions can be seen as vengeance mechanisms, and besides being costly and time-consuming, they are also deemed counterproductive since they may stir old wounds in all the sides of the conflict.⁵⁴ Differently, other scholars point that if prosecution is a disincentive for peace, automatically impunity would be an incentive.⁵⁵ Contrary to this previous idea, though, the UN Commission on Human Rights has concluded that, in fact, impunity is one of the main reasons for the continuation of grave violations of human rights.⁵⁶

49 Michael P. Scharf, “Trading justice for peace: The contemporary law and policy debate” in Atrocities and international accountability: Beyond transitional justice, edited by Edel Hughes, William A. Schabas and Ramesh Thakur (Tokyo: United Nations University Press, 2007): 248.

50 Anthony D’Amato, “Peace vs. Accountability in Bosnia.” The American Journal of International Law 88: no. 3 (Jul. 1994): 504.

51 Akhavan, “Are International Criminal Tribunals,” 625-626.

52 Priscilla Hayner, “Managing the Challenges of Integrating Justice Efforts and Peace Processes.” UN International Criminal Court, Review Conference of the Rome Statute,

RC/ST/PJ/INF.4, (May 30, 2010), https://asp.icc-

cpi.int/iccdocs/asp_docs/RC2010/Stocktaking/RC-ST-PJ-INF.4-ENG.pdf

53 Akhavan, “Are International Criminal Tribunal,” 625.

54 Pankhurst, “Issues of justice,” 240.

56 Scharf, “Trading justice for peace,” 251.

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In a defense for the importance of justice, it is supported that, though a cease-fire is crucial for short-term peace, only justice and reconciliation can prevent in the long- term the return of animosities. Bringing the culprits to justice restores the victims’

dignity while controlling possible desires of vengeance.⁵⁷ The failure to punish involved leaders responsible for human rights violations encourages cynicism and distrust in the new political system and in the rule of law. Therefore, besides judging those who committed atrocities during the conflict, justice discourage future human rights abuse, deter vigilance justice, and reinforce respect for the law throughout the community. Hence why many experts believe there can be no reconciliation without justice.⁵⁸ Yet, it is noted that partial or incomplete judicial processes can be worse than no process at all, triggering new cycles of resentment.⁵⁹

In that sense, another important debate is whether peace agreements function as a barrier for judicial accountability and vice versa. The main argument is that if there is a need for cooperation to broker peace, it is not realistic to expect a peace settlement at the same time that a tribunal is settled,⁶⁰ thus they are less likely to have any kind of commitment to future prosecutions of war crimes.⁶¹ This positioning resembles Edward Luttwak’s defense of war in his seminal article Give War a Chance. In the text, Luttwack defends that cease-fires and interventions prevent coherent outcomes of wars.

The cessation of conflicts without a decisive victory forestall the exhaustion of means, permitting the sides to recover and engaging in battle again, thus intensifying and prolonging the conflicts in a cycle that never ends.

Totally opposed to this view, Payam Akhavan⁶² defends that they failed to prove that tribunals are an impediment for peace and stability, either during negotiations or in post-conflict peacebuilding. In fact, the author says, judicial interventions are more likely to prevent atrocities than impede peace. He maintains that the political and economic costs of even the threat of an indictment have a stabilizing effect that diminishes atrocities and the power of leaders. Even in genocidal conflicts, there is a

57 Pankhurst, “Issues of justice,” 239-240.

58 Scharf, “Trading justice for peace,” 250-252.

60 Scharf, “Trading justice for peace,” 248.

62 Akhavan, “Are International Criminal Tribunal.”

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cost-benefit calculus that potentiate the impact of prosecutions on the leaders’ behavior.

It is not a question of impunity, but rather a matter of the best timing to indict, prosecute and judge the suspects.⁶³

Nonetheless, an equilibrium between peace and justice is the main goal and challenge in the process of internalizing accountability and bridging the gap that exists among human rights ideals and governance realities.⁶⁴ Bearing in mind that the implementation of international law and values on societies that had no say in their design may be seen as a project of imperialistic oppression.⁶⁵

Postcolonialism

When the term post-colonial came into light it had a primarily sense of celebration, marking the end of the colonial period and the newly independent nation-states.⁶⁶ Over time, notably during the 1980s, the term came to assume a critical meaning, reflecting the societies where, though the colonial rule had formally and legally ended, the colonial influence was still very much present.⁶⁷ Postcolonialism became the “critical perspective that primarily seeks to expose Eurocentrism and imperialism of Western discourses (both academic and public).”⁶⁸

In a pool of diverse important scholars, two are regarded as foundational to the area of postcolonial studies: Frantz Fanon and Edward Said. Fanon’s revolutionary work challenged the Eurocentric assumptions and world views of the 1960s exposing the psycho-social effects of colonialism on both the colonized and the colonizer. The imperial representation and ideological domination, as put by Fanon, turned the colonized sense of self to nothingness.⁶⁹

Said’s thinking is better known by his seminal book Orientalism. Though he speaks on terms of West and Orient, his work relates to the binary construction of the West and

63 Akhavan, “Are International Criminal Tribunal,” 629-631.

66 Dianne Otto, “Postcolonialism and Law?” Third World Legal Studies 15 (2000): vii.

67 Alpana Roy, “Postcolonial Theory and Law: A Critical Introduction.” Adelaide Law Review 29, no. 2 (2008): 317.

68 Raka Shome, “Postcolonial Interventions in the Rhetorical Canon: An ‘Other’ View.”

Communication Theory 6, no. 1 (Feb. 1996): 41.

69 Roy, “Postcolonial Theory and Law,” 338-339.

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the Other, including groups that are not necessarily Oriental, but were subjugated to the same process of colonization and misrepresentation in the Eurocentric discourse, like Latin American and African countries.⁷⁰ As stated by the author, this Other represents precisely what Europe is not. Therefore, this Orient symbolism was a socially constructed idea by Western power which not only created the ‘truth’, but also consolidated its political and cultural dominance over the Other.⁷¹

The conceptualization of the Other is critical in the postcolonial studies. The Other was created referencing back to attributes that the Western either lacked or rejected, it hence crafted an enduring division between the civilized West and the uncivilized “rest”.

These Others became regarded as savages and barbarians, a defining exclusion that was essential to justify the whole imperialistic enterprise.⁷²

As Alpana Roy⁷³ narrates, the postcolonial theory directly objects the view of an Otherness created by Western culture, exposing that even today the produced categories and images of non-Europeans – or Orientals, in Said’s vocabulary – are matched to the political, legal, economic or social convenience of Western countries. The binary relations, far from ceasing to exist once colonialism was deemed illegal, continued to be constantly renegotiated, reinforcing the relations of domination between the West and the Others.⁷⁴

As consequence, postcolonial studies nowadays do not correspond a state where a country left a colonial past behind, it portrays a critical view of the continuation of colonial consciousness of the former colonized and colonizers, as well as the institutions formed out of the imperialistic experience.⁷⁵ Postcolonialism then creates an important analytical tool to reexamine those normalized Western narratives. They enable a form of resistance to the hegemonic Eurocentric views, challenging its

70 Shome, “Postcolonial Interventions,” 43.

71 Otto, “Postcolonialism and Law?,” ix; Roy, “Postcolonial Theory and Law,” 346-347; Clive Barnett, “Postcolonialism: Space, Textuality, and Power” in Approaches to Human Geography, edited by Stuart Aitken and Gill Valentine (London: Sage Publications, 2006): 149.

72 Sundhya Pahuja, “The Postcoloniality of International Law” Harvard International Law Journal 46, no. 2 (Summer 2005): 461-463; Jeannine Purdy, “Postcolonialism: The Emperor’s New Clothes?” Social and Legal Studies 5, no. 3 (1996): 406.

74 Otto, “Postcolonialism and Law?,” xii.

75 Pahuja, “The Postcoloniality of International Law,” 469.

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discursive practices and aiming on the participation of all those that once were treated as subaltern, silenced by the dominant regimes.⁷⁶

Discursive practices legitimize the status quo while subjugates the Other, reproducing the neocolonial patterns of intellectual domination.⁷⁷ These discourses control the mode and the means of representation, usually through negative stereotypes that reveal a group unable to represent itself, a group in need of an outside ruler to guide it.⁷⁸ Contemporary, this kind of postcolonial discourse is considered the primary mean of imperialism.⁷⁹

Though postcolonial theories are relatively meager in law when compared to other areas of social sciences, its contributions have been increasingly outlined by different authors.⁸⁰ Roy⁸¹ considers how postcolonial theory in legal studies has a role on understanding the law as an integral part of the colonial, imperial and postcolonial projects, offering a different insight on what was previously as something natural.

Sundhya Pahuja⁸² argues that law, mostly international law, was (and is still used) as a

“cloak of legality” to continue the subjugation of the Other. Law, then, was/is used by those who held power in order to facilitate and reiterate practices of (neo)colonialism.

Postcolonialism in legal theory thus attempts to understand how international legal systems maintain and reproduce Eurocentric views.⁸³ Antony Anghie⁸⁴ maintains that international law shaped the foundations of colonized countries in the sense that it reinforced their subordinate role by the doctrines of sovereignty and international economy. More importantly for the purpose of the present study, are the ways in which international law continued to be used as a vehicle for the civilizing mission over the Others.⁸⁵

76 Shome, “Postcolonial Interventions,” 42; Otto, “Postcolonialism and Law?,” vii-ix.

77 Shome, “Postcolonial Interventions.”

79 Shome, “Postcolonial Interventions.”

80 Roy, “Postcolonial Theory and Law,” 315.

83 Otto, “Postcolonialism and Law?,” xviii.

84 Anthony Anghie, “The Evolution of International Law: Colonial and Postcolonial Realities.”

Third World Quarterly 27, no. 5 (2006): 748-749.

85 Anghie, “The Evolution of International Law,” 750-751.

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Even projects that are genuinely concerned with the universalization of legal institutions tend to reproduce the imperializing tendency of Otherness.⁸⁶ Law has been playing “a constitutive role – along with other forms of knowledge – in defining the colonial subject.”⁸⁷ Questioning this role played by legal discourse in continuing the colonial narrative of dominance and subordination is essential to raise awareness and take cognizance of the even subtle forms of domination that independence has not solved.⁸⁸

An illustrative example of how postcolonialism, and more specifically postcolonial discourse, affects the images of the Other in Western culture is Garth Myers, Thomas Klak and Timothy Koehl article in the news coverage of the conflicts in Bosnia and Rwanda.⁸⁹ The conflicts had many parallels – the population density and geographic area of the countries, ethnic identities informing and fomenting the animosities, combatants’ strategies and tactics, as well as a long and destructive wars – which created an expectation that both civil wars would have a rather similar approach at the American media.

After the analysis of six major US newspapers from October 1^st, 1990 to April 18^th, 1994, it became clear that, though analogous situations, they had quite a divergent coverage. Firstly, the volume of reporting on the conflict was incredibly distinct, with a ratio of 25:1 of Bosnian news. More strikingly than the amount of coverage, is the language used in each case. While Rwandan conflict was mostly represented by terms such as savagery, terror, bloody and tribal, Bosnia’s fight was taken as “everyone’s war”, with applied strategies and tactics of warfare by leaders or commanders.⁹⁰ The discourse that the quantity and type of coverage gave to its American audience only reinforced Western racism, intolerance and indifference, maintaining the hegemonic representation of the African Other. Hence, mass media became an agent to support power relations through shaping the public perception.⁹¹ In the authors words:

89 Garth Myers, Thomas Klak, and Timothy Koehl. “The inscription of difference: news coverage of the conflicts in Rwanda and Bosnia.” Political Geography 15, no. 1 (1995).

90 Myers, Klak, and Koehl, “The inscription of difference.”

91 Myers, Klak, and Koehl, “The inscription of difference.”

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“By simplifying the Rwandan war and making it subscribe to the ready- made discourse of Africa’s difference, the US press “constructs social reality” for its readership in a manner which plays on their misunderstandings and reassures them that, indeed, Africa is as bad as they imagined.”⁹²

Legitimacy

The last decades have seen an increase of interest in international legitimacy. It is ascribed that this expansion is due to the growing authority and importance of international institutions.⁹³ However, in order to correctly assess the idea of legitimacy in the ICTs, it is important to understand the difference between legitimacy and legality.

“By ‘legality’, one means the conformity or nonconformity of a body politic, or a national or international mechanism, with the legal rules that regulate its establishment.”⁹⁴ Legality in international institutions ensure that its actions are directly related to what was determined by its constitutive treaty.⁹⁵ Legitimacy, otherwise, is a mixture of the moral and psychological acceptance of this body by its constituency, it is fluid and depends on perceptions and outcomes.⁹⁶

Legality and legitimacy are not mutually dependent, though expected to go hand in hand; there can be illegal measures that are considered legitimate as well as illegitimate legal measures.⁹⁷ Nevertheless, for the purposes of this study, the concept of legitimacy needs an in-depth analysis that goes beyond the contrasts between legality and legitimacy.

The modern understanding of legitimacy is highly influenced by Max Weber’s definition in which legitimacy is the “probability that a ruler’s decision be accepted and carried out without the need of coercion.”⁹⁸ It is thus seen as an empirical fact and

92 Myers, Klak, and Koehl, “The inscription of difference,” 40.

93 Daniel Bodansky, “The Concept of Legitimacy in International Law.” In Legitimacy in International Law, edited by Rüdiger Wolfrum and Volker Röben (Berlin: Springer, 2008), 309.

94 Antonio Cassese, “The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice.” Leiden Journal of International Law 25 (2012): 492.

95 Bodansky, “The Concept of Legitimacy,” 311.

96 Cassese, “The Legitimacy of International Criminal Tribunals,” 493.

97 J.H.H. Weiler, “In the Face of Crisis: Input Legitimacy, Output Legitimacy and the Political Messianism of European Integration.” Journal of European Integration 34, no. 7 (2012): 827.

98 Klaus Bachmann and Aleksandar Fatić, The UN International Criminal Tribunals: Transition without justice? (London: Routledge, 2015), 27.

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analytical tool that resides on the belief of citizens about the rightfulness of political authority.⁹⁹

Despite the importance of Weber’s contribution, the many theory extensions that came afterwards have had a bigger impact on the concept, especially on the field of political science, where it is most applied.¹⁰⁰ The first relevant distinction is between normative and social legitimacy.

Normative legitimacy has a moral and ethical approach, being highly informed by philosophy and political theory. In order to be normatively legitimate, an institution has to make biding decisions justified by objective means.¹⁰¹ Social legitimacy, on the other hand, has an empirical assessment measured by social science tools.¹⁰² In this sense, there is legitimacy when there is acceptance of its policies in the basis of appropriateness and worthiness.¹⁰³ Though normative and social legitimacy are fundamentally different, they often inform each other, being conflated in a great part of the legitimacy literature.¹⁰⁴

The second and most acknowledged division is between input and output legitimacy.

This distinction was first promulgated by Fritz Scharpf in the 1970s:¹⁰⁵ input theories are concerned with the “participatory quality of decision-making process leading to rules and laws, whereas output legitimacy refers to the perceived efficiency of these rules and laws.”¹⁰⁶ Both express the public evaluation of the institution, even though one focus on the design while the other on the institution performance.¹⁰⁷

99 Jens Steffek, “The output legitimacy of international organizations and the global public interest.” International Theory 7, no. 2 (2015): 265.

100 Bachmann and Fatić, The UN International Criminal Tribunals, 28; Eva Lieberherr, “The role of throughput in the input-output legitimacy debate: Insights from public and private governance modes in the Swiss and English water sectors.” Paper presented at the International Conference on Public Policy (June 26-28, 2013), 2.

101 Karl Oskar Lindgren and Thomas Persson, “Input and output legitimacy: synergy or trade- off? Empirical evidence from an EU survey.” Journal of European Public Policy 17, no. 4 (2010):

451.

102 Weiler, “In the Face of Crisis,” 826.

103 Lindgren and Persson, “Input and output legitimacy,” 451.

104 Bodansky, “The Concept of Legitimacy,” 313.

105 Steffek, “The output legitimacy,” 264.

106 Lindgren and Persson, “Input and output legitimacy,” 451.

107 Andrew Potter, “Two Concepts of Legitimacy.” Maclean’s Magazine, December 3, 2008.

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Accordingly, input legitimacy relates to the institutional mechanisms and procedures, the machinery that allows citizens preferences to be linked with political decisions.¹⁰⁸ Its combination of the decision-making process with the subjects’ preferences reflects the democratic dimension of legitimacy.¹⁰⁹ To achieve input-oriented legitimacy, a degree of procedural fairness must be achieved,¹¹⁰ including neutrality, consistency, respect, accountability, and participation.¹¹¹

Output legitimacy, in a nutshell, refers to the constituency’s assessment of the institution’s performance relevancy and quality.¹¹² In this sense, it is related to effective or efficient resolutions, a utilitarian thinking based on results.¹¹³ The capacity to solve problems and meet expectations is summarized through the need of competence by the institution.¹¹⁴

The best example through analogy between input and output legitimacy is set forth by Jens Steffek.¹¹⁵ Taking from Abraham Lincoln’s proverbial definition of democracy as a government of the people, by the people, and for the people, Steffek explains that ‘by the people’ would be the input side of democracy, where citizens are able to select political office holders and hold them accountable. Likewise, ‘for the people’ would be contained in the output legitimacy domain, implying that the decisions taken should benefit all citizens.

In the context of (international) court’s legitimacy, the work of Klaus Bachmann and Aleksandar Fatić¹¹⁶ has great significance. According to the authors, the jurisdiction that empowers courts and tribunals to decide over the wrongdoer’s fate also entitles it

108 Mijke Boedeltje and Juul Cornips, “Input and output legitimacy in interactive governance.”

NIG Annual Work Conference (2004), 2; Potter, “Two Concepts of Legitimacy;” Steffek, “The output legitimacy,” 266.

109 Lieberherr, “The role of throughput,” 4.

110 Boedeltje and Cornips, “Input and output legitimacy,” 2.

111 Justice Tankebe and Alison Liebling, “Legitimacy and Criminal Justice: An Introduction.” In Legitimacy and Criminal Justice: An International Exploration (Oxford: Oxford University Press, 2013), 2.

112 Potter, “Two Concepts of Legitimacy.”

113 Lieberherr, “The role of throughput,” 3.

114 Steffek, “The output legitimacy,” 266; Boedeltje and Cornips, “Input and output legitimacy.”

115 Steffek, “The output legitimacy,” 270.

116 Bachmann and Fatić, The UN International Criminal Tribunals.

Fiat iustitia, pereat mundus: The International Criminal Tribunals and the Application of the Concept of Genocide

Master thesis